ESNOEL LOPEZ-PENA AND HECTOR BURGOS, PETITIONERS V. UNITED STATES
OF AMERICA
No. 89-7296
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States
OPINIONS BELOW
The opinions of the court of appeals (Pet. App. A1-A34) were
reported at 890 F.2d 490 and 890 F.2d 501, but were withdrawn by the
en banc court (Pet. App. A35-A36).
JURISDICTION
The judgment of the court of appeals was entered on November 22,
1989. A petition for rehearing filed by petitioners' codefendants was
granted on February 9, 1990. Pet. App. A35-A36. Petitioners' motion
to file a petition for rehearing out of time was denied on March 20,
1990. On February 21, 1990, Justice Brennan granted petitioners an
extension of time in which to file a petition for certiorari until
April 21, 1990. The petition for certiorari was filed on April 20,
1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether petitioners' convictions must be reversed because a
magistrate presided over jury selection at their trial even though
they did not object to the magistrate's role.
STATEMENT
After a jury trial in the United States District Court for the
District of Puerto Rico, petitioners were convicted of conspiracy to
distribute heroin, in violation of 21 U.S.C. 846. Petitioner Burgos
also was convicted on three counts of possessing heroin with intent to
distribute it, and one count of distributing heroin, in violation of
21 U.S.C. 841(a)(1). Petitioner Lopez-Pena was sentenced to 10 years'
imprisonment. Petitioner Burgos was sentenced to 12 years'
imprisonment. The court of appeals affirmed. Pet. App. A1-A34.
Petitioners' codefendants filed a petition for rehearing, with
suggestion for rehearing en banc. The court granted that petition,
but it left petitioners' convictions undisturbed. Id. at A35-A36.
1. The evidence at trial showed that petitioners participated in a
heroin distribution ring in Santa Isabel, Puerto Rico. Specifically,
the evidence showed that petitioner Lopez-Pena participated in one
sale of heroin and discussed another sale with undercover police
officers. Pet. App. A28. Petitioner Burgos delivered heroin to an
undercover officer on four occasions. Gov't C.A. Br. 12-19.
Prior to trial, the district court delegated jury selection to a
magistrate. Neither petitioners nor their codefendants objected to
the magistrate's role in jury selection. Pet. App. A3.
2. Petitioners also did not challenge the magistrate's supervision
of jury selection in their initial briefs on appeal. In July 1989,
after oral argument, petitioners filed a motion claiming that the
delegation of jury selection to a magistrate was error. Petitioners
relied on this Court's decision in Gomez v. United States, 109 S. Ct.
2237 (1989), which held that the Federal Magistrates Act does not
authorize a magistrate to conduct jury selection in a felony criminal
trial. In their motion, petitioners sought a remand to the district
court for dismissal of the indictment.
The court of appeals denied the motion to remand. Pet. App.
A1-A21. The Court noted (id. at A5-A8) that, because petitioners
failed to object to jury selection by the magistrate, they could
obtain reversal of their convictions only if the magistrate's
participation in jury selection amounted to plain error. /1/ And the
court ruled that petitioners had not met the standard for plain error.
Id. at A8-A15.
The court also ruled that petitioners' failure to object to jury
selection could not be excused on the ground that an objection would
have been futile, because no prior decision of the First Circuit had
held that the Magistrates Act permitted district courts to delegate
jury selection to magistrates. Pet. App. A12-A14. In a separate
opinion, the court of appeals affirmed petitioners' convictions. Id.
at A22-A35.
Judge Aldrich dissented from the denial of the motion to remand.
Pet. App. A16-A21. He argued that any objection to a magistrate's
supervision of jury selection would have been futile and that, in any
event, the magistrate's participation in jury selection amounted to
plain error.
Three of petitioners' codefendants filed a petition for rehearing
with suggestion for rehearing en banc. On February 9, 1990, the court
of appeals granted that petition. The court, however, only vacated
its judgment as to the defendants who filed the petition. Pet. App.
A35-A36. On March 20, 1990, the court denied petitioners' motion to
file a petition for rehearing out of time. Id. at A37-A38.
ARGUMENT
Petitioners contend (Pet. 5-13) that this Court's decision in Gomez
requires reversal of their convictions. In particular, they claim
(Pet. 10-11) that an objection to the magistrate's presiding over jury
selection would have been futile.
On April 23, 1990, this Court granted the government's petition for
a writ of certiorari to review the Ninth Circuit's decision in United
States v. France, No. 89-1363. That case presents the question
whether a defendant's failure to object to the magistrate's
supervision of jury selection may be excused on the ground that an
objection would have been futile in light of prior Ninth Circuit
decisions approving the delegation of jury selection to magistrates.
In this case, the court of appeals held that a defendant who failed
to object to the delegation of jury selection to a magistrate had
waived any claim based on Gomez. /2/ The court specifically rejected
the argument that an objection to the delegation of jury selection
would have been futile in light of prior First Circuit precedent. The
court reasoned that prior First Circuit cases had held only that it
was not plain error for a magistrate to preside over jury selection.
See United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983). The
First Circuit had never held that the Magistrates Act authorized or
required district courts to delegate jury selection to magistrates;
thus, nothing in its prior decisions rendered an objection to that
practice futile.
The lack of any conflict between the court of appeals' reasoning in
this case and that of the Ninth Circuit in France suggests that the
petition for a writ of certiorari in this case should be denied.
Nevertheless, both France and this case address the scope and effect
of this Court's decision in Gomez. Thus, this Court's disposition of
France may bear on the issues raised by this petition. For that
reason, the Court may wish to hold this petition pending the decision
in France.
CONCLUSION
The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the decision in United States v. France,
No. 89-1363.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
J. DOUGLAS WILSON
Attorney
MAY 1990
/1/ The court reasoned that this Court's holding in Gomez that a
magistrate's supervision of jury selection cannot be harmless error
does not require a finding that it automatically amounts to plain
error. Pet. App. A9-A12.
/2/ Although the court of appeals' decision has now been withdrawn,
the court's rejection of petitioners' motion to remand rests on the
reasoning in the withdrawn opinion. Thus, we will use that opinion to
explain the rationale of the decision below.